People v. Haynes

2024 IL 129795

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 129795)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

VICTOR HAYNES, Appellee.

Opinion filed November 21, 2024.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

Chief Justice Theis and Justices Neville, Overstreet, Holder White,

Cunningham, and O’Brien concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Victor Haynes was convicted of attempted

first degree murder and sentenced to 31 years’ imprisonment. On appeal, defendant

argued that his counsel was ineffective for not seeking a reduced sentence under

section 8-4(c)(1)(E) (720 ILCS 5/8-4(c)(1)(E) (West 2016)). That section allows a

defendant convicted of attempted first degree murder to be sentenced for a Class 1

felony, instead of a Class X felony, if the defendant proves by a preponderance of

the evidence at sentencing that “he or she was acting under a sudden and intense

passion resulting from serious provocation by the individual whom the defendant

endeavored to kill, or another, and, had the individual the defendant endeavored to

kill died, the defendant would have negligently or accidentally caused that death.”

Id. A divided panel of the appellate court affirmed defendant’s conviction but

vacated his sentence and remanded for resentencing. For the reasons that follow,

we reverse the judgment of the appellate court.

¶2 I. BACKGROUND

¶3 A. Trial Court Proceedings

¶4 Defendant was charged with multiple counts of attempted murder (id. §§ 8-4(a),

9-1(a)(1)), aggravated battery with a firearm (id. § 12-3.05(e)(1)), and firearm

possession charges (id. §§ 24-1.1(a), 24-1.6(a)(1), (2)). Defendant elected to have

a bench trial.

¶5 According to the evidence presented at trial, on December 17, 2016, Virgetta

White (Virgetta); her uncle, Jerome White (White); and her cousin, James

Williams, 1 rented a party bus to celebrate the birthdays of Virgetta and another

relative. They invited about 24 close friends and family members. Beginning at 9

p.m., the party bus made a few stops to pick up guests. There was alcohol on the

bus but no food.

¶6 “JK,” whom Virgetta had previously dated, was a guest, as was JK’s cousin,

James Staples. They asked if defendant could join the party, and Virgetta agreed.

The bus made various stops to buy more liquor and for bathroom breaks. At one of

the stops, Virgetta exited the bus and threw up. During that time, an argument arose

between defendant and two other people. Virgetta told defendant that he could get

off the bus if it was “going to be a problem.” JK said, “It’s cool, I got this.”

¶7 About 45 minutes to an hour later, defendant and JK started arguing. Virgetta

got between them and said, “Let’s not do this. This is my birthday.” According to

1

Virgetta testified that her cousin was also known as Nathall Williams and by the nickname J-

Lo.

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a detective, Virgetta said that at this point she shoved defendant two or three times,

knocking him backwards; at trial, Virgetta denied doing so. Virgetta testified that

defendant punched her in the jaw, grabbed her by the neck, and began choking her.

¶8 White saw what was happening and ran three or four steps from the front of the

bus toward the back of the bus. He moved Virgetta aside and punched defendant in

the face. White was about 6 feet tall and a little more than 300 pounds, and he

estimated that defendant was 5 feet, 9 inches or 5 feet, 10 inches tall. Defendant

grabbed White’s shirt and pulled him, and they fell onto the seats, with White on

top. White continued hitting defendant with his fist, for a total of six to seven

punches. White was “buzzed” and thought that defendant was probably hitting him,

too, but White did not feel any strikes. He then smelled gunpowder and realized

that he had been shot in the chest. White fell backwards. About one minute had

elapsed since White had first hit defendant.

¶9 Williams and defendant then began “tussling,” and White saw them fighting

over something black in defendant’s hand. Two more shots were fired, about four

seconds apart and about two to three minutes after the first gunshot. Williams fell.

Defendant and Staples pushed through the crowd, climbing over people, and ran

off the bus. Defendant held a black gun in his hand, and Virgetta testified that he

appeared uninjured.

¶ 10 Shortly afterwards, officers saw defendant and Staples walking down the street.

The police later located them in the foyer of a residential building, where officers

recovered a small, black, semiautomatic gun from underneath a bench. Defendant

had a gunshot wound to his left hand.

¶ 11 Subsequent testing showed that two fired cartridge casings recovered from the

party bus had been fired from the gun that the police recovered. The gun still

contained two unfired cartridges. As a result of the shooting, White was

hospitalized for about one week and underwent multiple surgeries. A bullet

remained lodged under his heart. Williams was on life support in a vegetative state.

¶ 12 During closing argument, the State argued that defendant was the initial

aggressor. Defense counsel responded that the issue was irrelevant because he was

not arguing self-defense but rather that the gun fired accidentally.

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¶ 13 The Cook County circuit court found defendant not guilty of the charges related

to Williams on the basis that Williams and defendant were struggling over the gun

when the gun went off. Therefore, the trial court could not find beyond a reasonable

doubt that defendant fired the weapon knowingly or did so with the intent to kill.

However, the trial court found defendant guilty of the attempted murder of White.

The trial court stated that there was no evidence that any hands other than

defendant’s were on the gun when White was shot. It stated that defendant was the

aggressor, knowingly discharged a firearm, and caused great bodily harm to White.

The trial court also found defendant guilty of related charges that merged into the

attempted murder conviction.

¶ 14 Defendant filed a motion for a new trial. At the beginning of the hearing, the

trial court clarified its findings. It stated that defendant boarded the bus with a

deadly weapon that he could not legally carry, pulled it out during the fistfight with

White, and shot White in the chest. Based on the gunshot wound’s location and the

surrounding circumstances, defendant shot with the intent to kill White, rather than

injure him, and then fled the scene, which was also an indicium of guilt.

¶ 15 In arguing the motion for the new trial, defense counsel repeated that he had not

argued self-defense because that would require that defendant acted knowingly,

whereas the gun accidentally fired during a struggle. The trial court denied the

motion.

¶ 16 During the sentencing portion of the hearing, defendant made a statement in

allocution that he was knocked unconscious. The trial court asked if defendant was

saying that the gun went off when defendant was unconscious, and he answered in

the affirmative. The trial court found the statement to be “ridiculous” but later stated

that it would not consider defendant’s assertion and his lack of remorse. The trial

court sentenced defendant to the statutory minimum of 31 years’ imprisonment,

which included a mandatory 25-year firearm enhancement.

¶ 17 B. Appellate Court Decision

¶ 18 On appeal, defendant argued, among other things, that his counsel was

ineffective for failing to seek a reduced sentence under section 8-4(c)(1)(E). The

appellate court agreed with defendant. The court stated that, under the statute, a

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defendant must show both (1) serious provocation and (2) negligence or accident.

2023 IL App (1st) 220296, ¶ 29. It stated that some prior cases had interpreted the

term “serious provocation” in the attempt statute as having the same meaning as

“serious provocation” in the second degree murder statute. Id. ¶ 35. The court stated

that there were four distinct categories of serious provocation and that the

categories of substantial physical injury and mutual combat were present here. Id.

¶¶ 37, 49. In contrast to People v. Lauderdale, 2012 IL App (1st) 100939, it

concluded that disproportionality was not a bar to applying section 8-4(c)(1)(E),

because “once a party is found guilty of attempt—and, thus, of having the specific

intent to kill—disproportionality has essentially already been decided.” 2023 IL

App (1st) 220296, ¶ 41. The court held that there was a reasonable probability that

the trial court could have found that defendant was acting under serious provocation

because White ran to defendant to engage in mutual combat with him. Id. ¶ 47.

¶ 19 The appellate court further stated that section 8-4(c)(1)(E) also required that the

defendant prove that, had the individual he tried to kill died, the defendant would

have negligently or accidentally caused that death. Id. ¶ 45. It reasoned that, in light

of an already proven intent to kill, the only reasonable interpretation of this

requirement was that, although the defendant intended to kill the victim, his acts

were sufficiently minimal that, had the victim died, the death could still be

considered negligently or accidentally caused. Here, defendant had shown a

reasonable possibility of success regarding this requirement because he fired one

shot at White during a physical altercation. Id. The court held that counsel was

therefore ineffective for not seeking a Class 1 sentence. Id. ¶¶ 47-48. It vacated

defendant’s sentence and remanded for a new sentencing hearing at which

defendant could request a reduced sentence under section 8-4(c)(1)(E). Id. ¶ 48.

¶ 20 Justice Tailor dissented on this issue. He stated that defendant had not shown

prejudice because he failed to argue that, had White died, his death would have

been negligent or accidental. Id. ¶ 59 (Tailor, J., concurring in part and dissenting

in part). Justice Tailor also argued that defense counsel’s performance was not

deficient because counsel made a strategic decision to disclaim self-defense based

on provocation, in order to instead argue accident. Id. ¶ 61. Further, because the

trial court had already found that defendant’s actions toward White were not

accidental, it would have been illogical for defense counsel to pursue this argument.

Id. Last, Justice Tailor noted that, at sentencing, defendant claimed that he was

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unconscious when the gun went off, such that he was not “ ‘acting’ ” at all, much

less as the result of serious provocation. Id. ¶ 63.

¶ 21 We subsequently allowed the State’s petition for leave to appeal. Ill. S. Ct. R.

315(a) (eff. Oct. 1, 2021).

¶ 22 II. ANALYSIS

¶ 23 At issue is whether defense counsel provided ineffective assistance for not

seeking a reduced sentence under section 8-4(c)(1)(E). To prevail on a claim of

ineffective assistance of counsel, a defendant must satisfy the two-pronged test set

forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Hodges, 234 Ill.

2d 1, 17 (2009). The defendant must first show that, despite the strong presumption

that the challenged action was the product of sound trial strategy, counsel’s

representation fell below an objective standard of reasonableness under prevailing

professional norms, such that he or she was not functioning as the counsel

guaranteed by the sixth amendment (U.S. Const., amend. VI). People v. Webb, 2023

IL 128957, ¶¶ 21-22. Second, the defendant must establish prejudice by showing a

reasonable probability that the proceeding would have resulted differently absent

counsel’s errors. Id. ¶ 21. A defendant’s failure to establish either prong of the

Strickland test precludes a finding of ineffectiveness. People v. Gayden, 2020 IL

123505, ¶ 27. Whether a defendant received ineffective assistance of counsel is a

question of law that we review de novo. People v. Hale, 2013 IL 113140, ¶ 15.

¶ 24 Section 8-4(c)(1)(E) provides:

“the sentence for attempt to commit first degree murder is the sentence for a

Class X felony, except that

***

(E) if the defendant proves by a preponderance of the evidence at

sentencing that, at the time of the attempted murder, he or she was acting

under a sudden and intense passion resulting from serious provocation by

the individual whom the defendant endeavored to kill, or another, and, had

the individual the defendant endeavored to kill died, the defendant would

have negligently or accidentally caused that death, then the sentence for the

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attempted murder is the sentence for a Class 1 felony.” 720 ILCS 5/8-

4(c)(1)(E) (West 2016).

The construction of a statute is a question of law that we also review de novo.

People v. Fair, 2024 IL 128373, ¶ 61. Our primary objective is to ascertain and

give effect to the legislature’s intent, which is most reliably indicated by the

statute’s language, when given its plain and ordinary meaning. Id. In determining

the legislature’s intent, we “ ‘may consider the reason and necessity for the law, the

evils it was intended to remedy, and its ultimate aims.’ ” People v. Taylor, 2023 IL

128316, ¶ 45 (quoting People v. Pullen, 192 Ill. 2d 36, 42 (2000)).

¶ 25 A. History of Section 8-4(c)(1)(E)

¶ 26 The State argues that defendant was not eligible for a Class 1 sentence under

section 8-4(c)(1)(E), such that his attorney cannot be labeled ineffective for not

seeking a reduced sentence under the statute. According to the State, section 8-

4(c)(1)(E) is intended to parallel the offense of second degree murder in the

attempted murder context. The State contends that, because defendant could not

have reduced his offense to second degree murder had White died, he similarly

cannot receive a Class 1 sentence for attempted murder just because White survived

an intentional gunshot wound to the chest.

¶ 27 We look at the history of section 8-4(c)(1)(E) to provide context for the State’s

position. In People v. Lopez, 166 Ill. 2d 441, 451 (1995), this court held that the

offense of attempted second degree murder does not exist in Illinois. First, we noted

that second degree murder replaced the crime of voluntary manslaughter. Id. at 446.

We stated that we had previously held in People v. Reagan, 99 Ill. 2d 238, 240-41

(1983), that the crime of attempted voluntary manslaughter based on an imperfect

self-defense did not exist. Lopez, 166 Ill. 2d at 446. We reasoned in Reagan that

attempted voluntary manslaughter would require an intent to kill with an

unreasonable belief in the need to use deadly force in self-defense, but it was

impossible to intend an unreasonable belief. Id.

¶ 28 We applied similar logic in Lopez in holding that the offense of attempted

second degree murder does not exist. We stated that second degree murder had the

same elements as first degree murder but that second degree murder was a lesser

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mitigated offense. Id. at 447. The State must prove the elements of first degree

murder beyond a reasonable doubt, and the defendant then has the burden to prove

the existence of a mitigating factor. Id. We went on to state that the attempt statute

required that a defendant intend to commit a specific offense, and thus the intent

required for attempted second degree murder would be the intent to kill without

lawful justification and with either a sudden passion or an unreasonable belief in

the need for deadly force. 2 Id. at 448. We stated:

“However, one cannot intend either a sudden and intense passion due to serious

provocation or an unreasonable belief in the need to use deadly force.

Moreover, concerning the mitigating factor of an imperfect self-defense, one

cannot intend to unlawfully kill while at the same time intending to justifiably

use deadly force.” Id. at 448-49.

Therefore, attempted second degree murder would require that the defendant intend

the presence of a mitigating factor, which was impossible. Id. at 449.

¶ 29 Justice McMorrow dissented in part, highlighting that, under the majority

opinion, a defendant who killed someone when a statutory mitigating circumstance

was present would be subject to a greater range of punishment if the victim lived

rather than died. Id. at 452-53 (McMorrow, J., concurring in part and dissenting in

part). That is, if the victim died, the defendant would be guilty of second degree

murder, which was a Class 1 felony that allowed for probation. Id. at 453. However,

if the victim lived, the defendant would be guilty of attempted first degree murder,

which was a nonprobationable Class X felony with a greater sentencing range. Id.

¶ 30 Almost one decade later, in 2004, the “CLEAR” Commission began a multiyear

undertaking to reform the Illinois Criminal Code. John Decker, The Mission of the

Criminal Law, Edit, Alignment, and Reform Commission (CLEAR): An

Introductory Commentary, 41 J. Marshall L. Rev. 611, 618 (2008). The CLEAR

Commission was cochaired by former Illinois Governor James R. Thompson and

former Illinois Appellate Court Justice Gino L. DiVito and was composed of 22

members. Id. The CLEAR Commission’s tasks included addressing issues that had

2

We note that we have allowed a petition for leave to appeal in People v. Guy, 2023 IL App

(3d) 210423, appeal allowed, No. 129967 (Ill. Nov. 29, 2023), which raises the issue of whether the

intent required for attempted first degree murder is the intent to kill or the intent to kill without

lawful justification. We express no opinion on the subject here.

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arisen in criminal law, including the one presented by Lopez. Michael P. Toomin,

Second Degree Murder and Attempted Murder: CLEAR’s Efforts to Maneuver the

Slippery Slope, 41 J. Marshall L. Rev. 659, 659 (2008).

¶ 31 According to Judge Toomin, the CLEAR Commission considered amending

the attempt statute or codifying the crime of attempted second degree murder, but

neither of these proposals “carried the day.” Id. at 699. The CLEAR Commission

then settled on the language of section 8-4(c)(1)(E), so that “[c]omporting with

decisional law, the offense of attempt[ed] second degree murder would remain

undefined and unrecognized at law,” but “[a]t the same time, defendants would

have the opportunity to provide mitigating factors consistent with the rationale of

second degree murder.” Id.; see James R. Thompson et al., The Illinois Criminal

Code of 2009: Providing Clarity in the Law, 41 J. Marshall L. Rev. 815, 826 (2008)

(section 8-4(c)(1)(E) was “designed to cure the problems that have been identified

*** for the past twenty years regarding the interplay between the attempt statute

and the crime of second-degree murder”). Legislators cited the CLEAR

Commission when passing the bill that created section 8-4(c)(1)(E). 96th Ill. Gen

Assem., Senate Proceedings, May 27, 2009, at 140; 96th Ill. Gen Assem., House

Proceedings, May 29, 2009, at 37-48.

¶ 32 B. Serious Provocation

¶ 33 Returning to the State’s argument, it asserts that defendant was not entitled to a

Class 1 sentence because he was not acting “under a sudden and intense passion

resulting from serious provocation by the individual whom the defendant

endeavored to kill, or another.” 720 ILCS 5/8-4(c)(1)(E) (West 2016). We have not

interpreted this phrase in the context of section 8-4(c)(1)(E), but both the State and

defendant argue that it should have the same meaning as nearly identical language

in the second degree murder statute.

¶ 34 The second degree murder statute states:

“(a) A person commits the offense of second degree murder when he or she

commits the offense of first degree murder *** and either of the following

mitigating factors are present:

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(1) at the time of the killing he or she is acting under a sudden and

intense passion resulting from serious provocation by the individual killed

or another whom the offender endeavors to kill, but he or she negligently or

accidentally causes the death of the individual killed; or

(2) at the time of the killing he or she believes the circumstances to be

such that, if they existed, would justify or exonerate the killing under the

principles stated in Article 7 of this Code, but his or her belief is

unreasonable.” (Emphasis added.) Id. § 9-2(a).

Thus, a person commits second degree murder when he commits first degree

murder with one of two mitigating factors present, being either serious provocation

or an unreasonable belief in the need for self-defense. Id.; People v. McDonald,

2016 IL 118882, ¶ 59. The second degree murder statute defined “[s]erious

provocation” as “conduct sufficient to excite an intense passion in a reasonable

person.” 720 ILCS 5/9-2(b) (West 2016). 3

¶ 35 We agree with the parties that we should construe the phrase “serious

provocation” in section 8-4(c)(1)(E) in the same manner as the language in the

second degree murder statute, upon which section 8-4(c)(1)(E) was based. In

interpreting statutory language, we look at the statute as a whole, construing words

and phrases in light of other relevant statutory provisions rather than in isolation.

Fair, 2024 IL 128373, ¶ 61. Similarly, “[u]nder the doctrine of in pari materia, two

legislative acts that address the same subject are considered with reference to one

another, so that they may be given harmonious effect.” Citizens Opposing Pollution

v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 24. We further note that, when a

term has a settled legal meaning, we will generally infer that the legislature intended

to apply that meaning. People v. Perez, 2014 IL 115927, ¶ 9.

3

The definition was amended in 2018 and now states:

“Serious provocation is conduct sufficient to excite an intense passion in a reasonable

person provided, however, that an action that does not otherwise constitute serious provocation

cannot qualify as serious provocation because of the discovery, knowledge, or disclosure of the

victim’s sexual orientation as defined in Section 1-103 of the Illinois Human Rights Act.” 720

ILCS 5/9-2(b) (West 2022).

See Pub. Act 100-460 (eff. Jan. 1, 2018).

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¶ 36 This court has established four categories of serious provocation: (1) substantial

physical injury or assault, (2) mutual quarrel or combat, (3) illegal arrest, and

(4) adultery with the offender’s spouse. People v. Agee, 2023 IL 128413, ¶ 81.

Defendant asserts that the first two categories are relevant here. The State points

out that in Agee, we held that a defendant who sustained only a scratch on his

forehead caused by a slap from the victim did not establish a substantial physical

injury or assault. The State argues that, similarly, White’s actions in this case, and

the lack of injury to defendant, do not amount to a substantial physical injury or

assault. Therefore, the only relevant category is mutual combat.

¶ 37 We agree with the State. Although White testified that he punched defendant

multiple times, Virgetta did not see any injuries on defendant when he left the bus.

Further, defendant was able to climb over people and run off the bus, and he was

walking outside on a December night when the police first saw him. Though

defendant had a gunshot wound to his hand, this injury was caused by his own gun,

which by all accounts never left his possession. Defendant has the burden of

showing ineffective assistance of counsel, and the record contains insufficient

support for his claim of substantial physical injury or assault. Defendant counters

that his counsel would have been able to introduce such evidence at sentencing, but

this assertion is entirely speculative and rebutted by the evidence presented at trial.

See People v. Lewis, 2022 IL 126705, ¶ 46 (“Strickland requires a defendant to

‘affirmatively prove’ that prejudice resulted from counsel’s errors.”); People v.

Williams, 139 Ill. 2d 1, 12 (1990) (speculative allegations and conclusory

statements are insufficient to establish ineffective assistance of counsel).

¶ 38 Therefore, only mutual combat remains. We examined that category

extensively in People v. Austin, 133 Ill. 2d 118 (1989). There, according to the

defendant’s version of events, a bus driver hit her hand with a transfer punch after

the defendant wrongfully tried to take a bus transfer. Id. at 122. The defendant hit

the driver in retaliation, and a physical fight ensued. Id. Defendant fired a gun into

the bus’s floor. The driver was able to force the defendant off the bus, at which

point the defendant shot and killed the driver. Id.

¶ 39 The defendant sought a voluntary manslaughter instruction based on serious

provocation. Id. at 123. The trial court denied the instruction, but the appellate court

held that the defendant was entitled to the instruction. Id. It stated that there was a

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dispute about who the aggressor was and that there was enough evidence of serious

provocation based on the passengers’ testimony, the defendant’s and the driver’s

similar size, and injuries that the defendant sustained. Id.

¶ 40 This court determined that there was not even some evidence of serious

provocation based on mutual combat that would justify the jury instruction. Id. at

123-25. We stated that “[m]utual combat is a fight or struggle which both parties

enter willingly or where two persons, upon a sudden quarrel and in hot blood,

mutually fight upon equal terms and where death results from the combat.” Id. at

125. We further stated that, if a person instigates combat, she cannot rely on the

victim’s response as evidence of mutual combat Id. at 126. We stated that the

defendant had instigated the combat by attempting to steal a bus transfer, and the

bus driver struck the defendant’s hand in response to the illegal act. Id. We held

that the defendant could not rely on the driver’s response to defeat the fact that the

defendant instigated the combat or as evidence that the driver willingly entered the

fight. Id.

¶ 41 We further determined that the fight was not on equal terms. Id. We stated that

the provocation by the victim must cause a passionate state of mind in an ordinary

person under the same circumstances and that “[a] slight provocation is not enough,

because the provocation must be proportionate to the manner in which the accused

retaliated.” Id. at 126-27. We stated that the death is murder when the defendant

attacks a victim with violence out of all proportion to the provocation, especially if

the defendant kills the victim with a deadly weapon. Id. at 127. We concluded that

there was no evidence to objectively indicate that the defendant had reason to fear

for her life, such that shooting the driver was completely out of proportion to the

provocation, and mutual combat could not apply. Id.

¶ 42 Defendant contends that Austin’s “slight provocation” language is misleading

because a showing of “serious provocation” is already required by statute and that

the issue of proportionality is really a question of whether serious provocation

existed. Defendant argues that the analysis is therefore not focused on whether the

defendant’s response is proportionate to the victim’s provocation.

¶ 43 Defendant asserts that there was serious provocation in this case. Defendant

claims that White was the initial aggressor because he charged at defendant and

punched him in the face. The two men fell, with White, who was 300 pounds, on

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top. White then punched defendant six or seven more times. Defendant argues that

White was still swinging at him when White was shot. Defendant maintains that,

unlike Austin, White entered the struggle willingly, the fight was on equal terms,

and defendant’s actions were not disproportionate to White’s serious provocation.

¶ 44 Defendant additionally points to the appellate court’s analysis of this issue. The

appellate court reasoned that if a person is found guilty of attempted first degree

murder, thereby having the specific intent to kill, disproportionality essentially has

already been decided and cannot be an absolute bar to applying section 8-

4(c)(1)(E). 2023 IL App (1st) 220296, ¶ 41.

¶ 45 The State argues that specific intent is distinct from disproportionality. It uses

the example that one can intend to kill someone with a knife in mutual combat but

still act proportionately if his opponent was similarly armed. Defendant responds

that the State’s example highlights the problem with the idea of disproportionality,

because under such a scenario, the defendant’s actions would likely have been

legally justified.

¶ 46 Defendant is correct that section 8-4(c)(1)(E) requires “serious provocation.”

Mutual combat is a category of serious provocation. However, just because there

has been a physical fight at some point during the incident or even at the time of

the attempted murder, it will not always equate to serious provocation. In Austin,

we stated that “[a]t the most, the victim provoked defendant by engaging in a ‘fairly

even’ fistfight for 30 to 40 seconds and forcing her off the bus.” Austin, 133 Ill. 2d

at 127. We had defined mutual combat as a fight that both parties willingly enter

into or where they “mutually fight upon equal terms,” which implicates

proportionality. (Emphasis added.) Id. at 125. We then emphasized proportionality

in stating that “[a] slight provocation is not enough, because the provocation must

be proportionate to the manner in which the accused retaliated.” Id. at 126-27. We

concluded that mutual combat did not occur because the defendant instigated the

combat and because shooting the unarmed victim was completely out of proportion

to the provocation. Id. at 127. Proportionality therefore remains a relevant

consideration in determining whether mutual combat applies.

¶ 47 Contrary to the appellate court’s logic, a specific intent to kill does not mean

that a defendant’s response is always disproportionate. For example, both parties

could be armed with similar weapons, or the defendant may be using his hands

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while the victim has a knife. These scenarios do not automatically result in the

defendant’s conduct being legally justified, because, among other possibilities, the

victim may have been defending himself.

¶ 48 We conclude that serious provocation is inapplicable under the facts of this

case. Again, where a person instigates the combat or is the aggressor, he cannot rely

on the victim’s response as evidence of mutual combat Id. at 126. Here, White

charged at defendant and began hitting him only because defendant was hitting and

choking Virgetta. Therefore, as in Austin, White’s actions were not a willing entry

into the fight but rather a response to defendant’s violent conduct toward White’s

family member. Additionally, the fight was not on “equal terms” because the men

were engaged in a fist fight before defendant took out his gun and shot White in the

chest. Like Austin, shooting White was entirely disproportionate to the claimed

provocation, especially because defendant’s response involved a deadly weapon.

See id. at 127; see also McDonald, 2016 IL 118882, ¶ 65 (there was insufficient

evidence of serious provocation based on mutual combat where, even if the victim

had hit the defendant, the defendant’s response of stabbing the unarmed victim

three times was “completely out of proportion to the provocation”). For these

reasons, defendant could not have shown serious provocation by a preponderance

of the evidence at sentencing.

¶ 49 C. Whether Section 8-4(c)(1)(E) Creates

Alternative Scenarios

¶ 50 Defendant additionally argues that section 8-4(c)(1)(E) creates alternative

scenarios whereby a defendant can mitigate his sentence for attempted murder if he

can prove by a preponderance of evidence at sentencing that either

“he or she was acting under a sudden and intense passion resulting from [(1)]

serious provocation by the individual whom the defendant endeavored to kill,

or [(2)] [serious provocation by] another, and, had the individual the defendant

endeavored to kill died, the defendant would have negligently or accidentally

caused that death.” 720 ILCS 5/8-4(c)(1)(E) (West 2016).

Defendant argues that the statutory language is ambiguous as to whether it is

disjunctive or whether it contains two elements that must both be proven, and we

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should adopt the former interpretation based on the statute’s plain language, the

legislative intent, comparison to the second degree murder statute, and the rule of

lenity. Defendant recognizes that the appellate court below interpreted the statute

conjunctively (see 2023 IL App (1st) 220296, ¶¶ 29, 44), but he cites People v.

Taylor, 2016 IL App (1st) 141251, ¶ 22, where the appellate court came to the

opposite conclusion that “the statutory language clearly addresses two separate

scenarios.”

¶ 51 We do not resolve this issue here because even defendant’s alternative scenarios

approach requires a showing of serious provocation, which cannot be supported by

the evidence in this case. Correspondingly, defendant is unable to show that his

counsel’s performance was deficient in not seeking a reduced sentence under

section 8-4(c)(1)(E) or that defendant suffered prejudice due to counsel’s decision.

Defendant’s claim of ineffective assistance of counsel therefore fails.

¶ 52 III. CONCLUSION

¶ 53 For the reasons stated, we reverse the judgment of the appellate court that

vacated defendant’s sentence and remanded for resentencing.

¶ 54 Appellate court judgment reversed.

¶ 55 Circuit court judgment affirmed.

¶ 56 Cause remanded.

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